Consideration
67 As observed by Jagot J in Western Bundjalong People (at [7]), the provisions of Part VB of the FCA Act, enshrining the principle that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, are fundamental to the functions of our judicial system. As her Honour there explained (at [8]), those provisions have particular importance in the context of applications made under the NT Act. That is due to a combination of factors including, as recognised in the Preamble to the NT Act, the important public purposes of the legislation by which the people of Australia intend:
(a) to rectify the consequences of past injustices to Aboriginal peoples and Torres Strait Islanders brought about by dispossession of their lands; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire,
and the legislative intention that the just and proper ascertainment of native title rights and interests is done, if possible, by conciliation and, if that is not possible, in a manner that has due regard to their unique character. In that context, the role of the State as a respondent to native title proceedings is particularly important. As Jagot J observed (at [17]):
It is the State party which is the landed successor to the dispossession of Aboriginal peoples. It is the State party with whom the principal negotiations about native title claims must take place. It is within the power of the State party to agree to resolve a claim by an applicant without the need for contested litigation and in a manner which is timely, efficient and does not involve disproportionate resources. It is the State party which is subject not only to the duties imposed by the NTA and the Court Act but also by the obligations of a model litigant. Unless the State party is both vigilant about discharging all of its duties in good faith, recognising the objects of the NTA and its unique role, and committed to taking responsibility for driving sensible and fair outcomes in a timely manner, there is no real prospect of other parties or the Court being able to effectively discharge their and its duties. There is also no prospect of matters being resolved in a manner which is consistent with the objects of the NTA.
68 It is well established that, as a respondent to a native title claim, the State represents the interests of all of the community: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 (Munn) at [29]-[30] per Emmett J. However, in determining whether to agree to a consent determination of native title, the State need only be satisfied that there is a credible or cogent basis to conclude that the statutory requirements of s 223 are satisfied: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J. It would be inconsistent with its obligations under the NT Act and Part VB of the FCA Act for the State to require an applicant to go further: Western Bundjalong People at [21]-[22]; Widjabul Wia-Bal at [51].
69 In the present matter, the State has advised the applicant that it does not presently consider that there is a credible basis for the native title claim. The State has explained its view in the Crown Law letter dated 30 May 2019, outlined above. The State submitted in the hearing before me that it is not seeking to require the applicant to persuade it on the balance of probabilities that the statutory requirements are satisfied.
70 The conduct of the State, about which the applicant complains, is the refusal to accept, as determinative of the Separate Questions, the opinions of the State's own expert, Dr Kenny, as expressed in the Joint Reports. The applicant contends that the State should not be entitled to adopt that position in circumstances where it elected to file and serve Dr Kenny's expert report and raised no objection to the expert conferral ordered by the Court. The applicant says that, where there is agreement between the expert anthropologists engaged by the applicant and by the State, there must be a credible basis for the claim.
71 While I am acutely conscious of the obligations imposed on litigants and the Court under Part VB of the FCA Act, and the special nature of proceedings under the NT Act, I am not persuaded that the State's conduct warrants the remedy sought by the applicant. It may be accepted that the position adopted by the State is unusual. However, from time to time unusual circumstances arise in litigation. Each case must be examined on its merits to assess whether a party is failing to act in accordance with the duties imposed by the Court with respect to the conduct of civil litigation.
72 Certain of the propositions advanced by the State can be accepted and, at the end of the argument, were not truly disputed by the applicant.
73 First, an expert retained by a party is not the agent of the party. Before giving evidence, an expert is merely a potential witness in the proceeding. The Federal Court Rules 2011 (Cth), and the Practice Note issued by the Court in relation to expert evidence pursuant to those Rules, require experts to be independent of the party retaining the expert. Paragraph 3.1 of the Practice Note stipulates that an expert retained by a party is not that party's 'hired gun' and that a party should never attempt to pressure or influence an expert into conforming their views with the party's interests. Paragraph 4.1 stipulates that the role of the expert witness is to provide relevant and impartial evidence in their area of expertise and that an expert should never become an advocate for the cause of the party that has retained the expert. It follows that statements made by an expert in their report, even when filed and served by a party, cannot constitute a formal admission by a party in the proceeding. Formal admissions reflect a decision by a party not to dispute an alleged fact and, generally, must be recorded in a pleading, an answer to a notice to admit or an agreed fact under the Evidence Act 1995 (Cth). A party is bound by a formal admission unless leave is given to retract the admission. The question whether statements made by an expert in their report, which is then filed and served by a party, could constitute informal admissions of a party, enabling them to be adduced in evidence as an exception to the rule against hearsay, can be left to a later time. However, it is difficult to see that such statements would satisfy the test in s 87(1)(a) of the Evidence Act 1995 (Cth) as being statements made by the expert on behalf of the party with the authority of the party. The act of filing and serving an expert report by a party cannot transform the independent character of the statements made in the report into statements made on behalf of the party. Even if such statements could constitute informal admissions, it would remain open to the party to persuade the Court that the opinions expressed or conclusions reached lacked a proper basis in the evidence before the Court.
74 Second, the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. Accordingly, the interlocutory application brought by the applicant cannot be resolved on the basis of those Principles.
75 The real question raised by the interlocutory application is whether the conduct of the State, about which the applicant complains, is of a character that should disentitle the State from participating in the hearing of the Separate Questions in opposition to the native title claim advanced by the applicant. To state the question in that manner highlights the significance of the order being sought by the applicant. While the order is not, and cannot be, an order for summary judgment on the Separate Questions, it is an order that would summarily remove the State's opposition to the Separate Questions in circumstances where the State is the only party actively participating in the determination of the Separate Questions and, therefore, the only contradictor.
76 The circumstances of this case differ from the circumstances in the two cases principally relied on by the applicant.
77 In Kurtijar People, Rares J was dealing with an application by three respondents for leave to file an addendum to the report of their expert anthropologist. It was an application that was made shortly before the commencement of the hearing. It was also an application that was made after a joint conferral of the experts. The addendum, which was put as a clarification, had the effect that a matter that had been agreed between the experts at the conferral became contentious. The change in position would have caused prejudice to the applicant because the applicant had prepared for the hearing on the basis that the matter was agreed. In those circumstances, Rares J would not allow the addendum to be filed, applying the principles of case management that are reflected in Part VB of the FCA Act. It was in that context that his Honour stated (at [37] and [38]):
Ordinarily, where a party seeks to change the substantive direction of a case either by an amendment, a withdrawal of an admission or, in this case, an attempt to qualify or withdraw an agreed statement in a joint expert report arranged and facilitated by the Registrar, an explanation for the change of position and the circumstances in which the change came about should be given to the Court. This is in order that the Court can weigh the explanation against the effects of any delay, the impact of the change of the position on the proceeding and on the other parties and the objectives in s 37M (see Aon 239 CLR at 215 [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Ultimately, the question comes down to what is in the interests of justice. Those interests are informed, but not concluded, by the objectives in s 37M. The Court must weigh up all of the relevant considerations and arrive at a decision that does justice to all of the parties.
78 His Honour made clear that the earlier agreement of the experts at the conferral was not a formal admission (at [42]). The case management issue before his Honour was the prejudice the applicant caused by an unanticipated change in position of three respondents shortly before the hearing. His Honour refused the application because there was not an adequate explanation for the delay in serving the addendum (at [49]) and the prejudice to the applicant in having to deal with the change in position shortly before trial (at [52]).
79 The circumstances of the present case differ: the State is not seeking to file any further expert evidence, whether by way of addendum or otherwise; there was no material delay in the State notifying the applicant that it maintained its opposition to the native title application; the State has provided an explanation for why it is maintaining its opposition to the native title application; and a date for the hearing of the Separate Questions has not yet been set.
80 In Widjabul Wia-Bal, the applicant sought a declaration to the effect that the Attorney General of NSW cannot lawfully require that the applicant agree an indigenous land use agreement as a condition of the Attorney General being willing to agree to the making of a native title determination by consent. The applicant argued that the Attorney General's conduct was in breach of the obligation of good faith owed by the Attorney-General to the applicant in relation to the negotiation of an agreement for a native title determination by consent. The Full Court (Reeves, Jagot and Mortimer JJ) found that the existence of a duty on the part of each party and its representatives to act in good faith in relation to the conduct of a mediation is beyond argument, particularly having regard to s 94E(5) of the NT Act (at [36]). Further, it would be a breach of the duty imposed by s 94E(5) for a party to a mediation who does not have any bona fide dispute as to the existence of the native title rights which are sought to be the subject of a consent determination to withhold consent in an attempt to secure agreement on matters outside of the scope of the determination (at [38]). If a breach of such a duty were found, the powers available to the Court include an order under s 84(4) of the NT Act that a person cease to be party and an order under rule 16.21 of the Federal Court Rules striking out a pleading (at [42]). However, the Full Court concluded that it cannot be said that it is inherently impermissible, and thus not an act in good faith, for a State party to adopt a position in a mediation under Part 4 of the NT Act that its entry into an agreement under ss 87 and 87A is conditional upon the registration of an indigenous land use agreement (at [67]). The Court observed that ss 87(4) and (5) and 87A(5) expressly permit an agreement to involve matters other than native title. Therefore, even if an indigenous land use agreement is characterised as a matter other than native title, it must be permissible for the parties to negotiate about an indigenous land use agreement as part of a mediation under Part 4 of the NT Act.
81 Unlike in Widjabul Wia-Bal, here the State is not attempting to secure agreement on matters outside of the scope of the native title determination; rather, the State does not presently accept that there is a credible basis for the applicant's native title claim.
82 It was common ground between the parties that, in order to agree to a consent determination, it is sufficient for a party in the position of the State to satisfy itself that there is a credible basis for the application. I am not persuaded on the evidence before me that the State is requiring the applicant to go further and thereby failing to act in good faith. In the present case, the State has consistently maintained the position that it does not accept that there is a credible basis to the applicant's native title claim. That was communicated by Crown Law's letter dated 22 March 2019, a few weeks after the conferral of experts. The State's position was confirmed by Crown Law's letter dated 30 May 2019, which provided an explanation for the State's position. I do not accept the applicant's argument that the State's position is untenable given the agreement of the experts as expressed in the Joint Reports. The agreement of the experts is not conclusive of any issue in the proceeding. It is open to a party in the proceeding to demonstrate that the agreed opinions are based on factual assumptions that are not shown to be true on the evidence. It follows that the agreement of the experts does not necessarily establish a credible basis for the native title claim. The State has advised the applicant that it has examined the material filed in the proceeding and considers that: there is not a sufficient factual foundation for the expert opinions; the relevant society is not yet clearly articulated or understood, including the claimed society in the context of the regional society; the composition of the claim group is not settled; and the lay witness material is not of sufficient depth or detail to demonstrate continuing acknowledgement of traditional law and custom and connection to the claim area. On the evidence before me, I would not reach a conclusion that, in expressing those views, the State is not acting in good faith. It is not possible on an interlocutory application of this kind to undertake a detailed assessment of the views expressed by the State to determine whether they are correct or incorrect. That would require a partial trial of the native title claim. The applicant has not attempted to persuade me that the views expressed by the State are legally and factually untenable by reference to the lay evidence and expert reports that have been filed such as to create an inference of bad faith. The applicant relies solely on the fact that the State does not accept the conclusory opinions expressed in the Joint Reports by the expert anthropologists. In my view, that fact alone does not establish an absence of good faith.
83 I accept that it is regrettable that the State participated in the conferral of experts without raising any objection to the adequacy of the expert reports that have been filed, and raised its concerns after the conferral. However, I consider that the decisions made by the State fall short of constituting an abuse of process. It cannot be said that the State is using the Court's procedures in a manner that is unjustifiably oppressive to the applicant or in a manner that would bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at [25] per French CJ, Bell, Gageler and Keane JJ. I do not accept the applicant's characterisation of the State's conduct as seeking to have a 'second bite of the cherry'. The State has made it clear that it does not seek to adduce further expert evidence, or evidence of any kind. Its position is simply that it does not accept that the material filed on behalf of the applicant establishes a credible basis to the claim, including because various integers of the claim remain unclear. While the State participated in the expert conferral without raising objections, two mitigating matters should be noted. First, at the time that orders were made for the conferral, the State had not yet filed and served the report of Dr Kenny. There was limited time for reflection on the totality of the evidence at that time. Second, the State sought to make the results of the conferral more informative by asking the experts to explain the reasons for any jointly held opinion and the evidence upon which the opinion was based. For reasons that were not explained, the experts chose not to provide that explanation, with the result that the agreed opinions were stated in a conclusory manner.
84 As noted earlier, it has long been recognised that, in a native title claim, the State appears in the capacity of parens patriae to look after the interests of the community generally and the Court expects the State to take a real interest in the proceeding in the interests of the community generally: Munn at [29]. At the same time, the State has an important role in ensuring that the purposes of the NT Act are pursued in a manner which is timely, efficient and does not involve disproportionate resources: Western Bundjalung People at [17]. The balancing of these considerations in a given case may be difficult. In the present case, I am not persuaded that the position adopted by the State demonstrates that the State is in breach of s 37N of the FCA Act by conducting the proceeding in a way that is inconsistent with the overarching purpose or is in breach of its duty to negotiate in good faith under the NT Act.